Adocacy Updates from our LIRS Ambassador, Robert Bolognese
Jus Soli: Birthright Citizenship (April 2, 2007)
The
immigration reform debate seems to be slowly heating up.
Unfortunately, one of the issues that have not been discussed is the
matter of U.S. born children of illegal immigrants. Many immigration
reformists call these children “anchor babies” because they are the
family foothold into the U.S. When this child reaches of age, he or she
can sponsor his or her family members for entry into the United
States. Also, in some cases, family members of such children who are
already in the U.S. hope that because of the child’s citizenship in the
U.S., the immigration authorities would elect not to split up the
family and would permit the child and his parents to remain together in
the U.S. This issue has created a decisive debate between the two
sides of immigration reform.
One side believes that the
solution is to keep the family together in the U.S. and permit the
child and his parents to remain in the U.S. The other side believes
that the only logical solution is to deny citizenship to babies born in
the U.S. whose parents are either illegal immigrants or immigrants on
temporary visas. This would go against the U.S. policy of granting
citizenship to those born on U.S. soil, jus soli, and those of U.S.,
citizenship, jus sanguinis. Interesting in many other countries
throughout the world, they only recognize citizenship based on the
parents of the child being a national or citizen of that state, jus
sanguinis.
This issue has intensified because of a recent
case involving an eight year old boy named Saul Arellano, who is a U.S.
citizen. In Saul’s case, his mother Elvira Arellano, who is not a U.S.
citizen, is facing deportation back to Mexico. The federal immigration
authorities have convicted her of working under a false Social Security
number. If she is deported, Saul either will have to go with her or
remain here by being raised by someone else. Unfortunately, Saul’s
father has not been part of his life and, like the mother, is not a
U.S. citizen. Saul through his pastor has argued in federal court in
Chicago that his due process rights are being violated if he is forced
to leave the country. The court, however, concluded that such rights
are not being violated because he was not required to leave the
country. He could stay if his mother turned over guardianship.
Therefore, the court found there was no due process violation of Saul’s
right inherent in his mother’s deportation. Coleman v. U.S., No.
1:06-cv-04582 (Sept. 29).
The United States Supreme Court has
already addressed this issue of citizenship for those born on U.S.
soil. See U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In that case, the
court held that a man, who was born of two Chinese citizens who were
permanent U.S. residents, was a U.S. citizen. More recently, this issue
of the rights of children of illegal immigrants became an issue with
respect to public benefits. In the U.S. Supreme Court case, Plyler v.
Doe, the court found that the states could not deny benefits such as
public education to children based on their citizenship or that of
their parents. Plyler v. Doe, 457 U.S. 202 (1982).
Congress
itself has tried to address this issue. The 109th Congress has
considered several bills that would override the above assessment by
the court on who is subject to U.S. jurisdiction under the 14th
Amendment. None of these bills passed, but each bill would have
defined U.S. born children of illegal immigrants “outside” the
jurisdiction of the U.S. authorities.
This issue of who is a
citizen will continue to be an important issue within the immigration
reform discussions this year and into the future. Unfortunately, for
Saul, legislative resolution may be too late.
Immigration Reform Bill Offers Path to Citizenship (March 31, 2007)
Two
lawmakers will fire the opening salvo in this year's immigration debate
with the first House bill in many years to call for citizenship for
illegal immigrants. Reps. Luis Gutierrez (D-IL) and Jeff Flake (R-AZ)
will unveil broad legislation that would also create a new worker
program, stiffer worker verification procedures and overhaul the visa
system to reduce waiting times for legal immigrants.
In
recognition of the tensions that surround the controversial issue, the
bill also contains provisions designed to appeal to conservatives who
want stronger border enforcement and opposed citizenship provisions
that grant amnesty to people in the country illegally. One measure
would ensure that tough border security and work-site enforcement
standards are met before other changes can go forward. Another would
require illegal immigrants elgibile for citizenship under the bill to
leave the country and return legally.
Kennedy praised their bill
Tuesday and said he was optimistic a Senate bill would soon follow. He
said lawmakers wanted a "tough but fair bill that strikes the right
balance between protecting our security, strengthening our economy, and
enacting laws that uphold our humanity."
New Challenges Facing Asylum-Seekers (March 18, 2007)
A
person travels thousand of miles risking his or her life and, possibly
spending, his or her finances to arrive to the United States. The
person fled his or her country because he or she was being persecuted
based on his or her race, religion, nationality, membership of a
particular social group or political opinion. He or she arrives at a
point of entry and has no documents. The person is questioned by a
USCIS officer and because he or she does not have any documentation,
the person is sent for secondary inspection. Unless the person
indicates his or her desire to apply for asylum or express a fear of
persecution in their home country, the person may face summary return
to their last port of embarkation without any further review, including
judicial review or appeal.
If they do convey a legitimate
claim for asylum., the person is detained until the credible fear
finding. U.S. law requires that all arriving aliens seeking asylum
must initially held in detention if they do not have a proper visa or
proper entry documentation. This detention can last a long time. The
above examples demonstrates the difficulties that an asylum seeker
faces once arriving to the U.S. In fact, these growing level of
deterance may be a factor in reducing the number of asylum applicants.
Between 2001 and 2005, the number of asylum seekers asserting initial
claims dropped about half. Set forth below are variety of negative
factors that an asylum seeker faces in the U.S. asylum system.
Many
detention facilities for illegal aliens are located in remote areas.
They are away from family, legal and other systems of support. It
prevents the detainee from obtaining appropriate documentation to
support his or her claim. That could include obtaining medical
affidavits supporting that the claimants injuries suffered in his or
her country are consistent with claimants’ claims. In addition, it is
difficult at times to obtain counsel or meet with counsel because of
limited visiting hours or limited level of privacy at the facility.
According
to U.S. immigration laws, asylum claims must be filed within 1 years of
arrival in the country. There are very limited exceptions, such as a
change in circumstances that materially affect applicant’s eligibility
for asylum or extraordinary circumstances that delays filing. In fact,
according to data from the Department of Homeland Security that this
time filing requirement prevents a large number of asylum seekers
asserting a asylum claim. According to a report from the American Bar
Association (the “Report”), since 1998, when this requirement became in
effect, U.S. asylum officers have initiated removal proceedings for
asylum applicants for more than 35,000 cases because the claimants
failed to file or prove they filed within the one year period. In
fact, there are a number of potential asylum claimants that elected not
to file for asylum relief because they missed the filing deadline and
chose to live as an illegal status indefinitely. In some cases the
person could have still been entitled to receive asylum relief because
they fall under one of the exceptions. There are a variety of reasons
why a person elects not to file, such as ignorance of the law, language
barriers, or traumatize from the experience in his or her own
government and fears any government.
According to the Report,
two out of three asylum seekers lack representation. Representation of
counsel is an invaluable factor in achieving asylum relief. Asylum
seekers who are represented at their court hearings are between 1.4 and
17 times more likely to be granted asylum than those without
representation, according to studies.
The Report stated that
the grant rate for cases decided on merits is at 40% for Asylum Office
and 39% in the Immigration Courts. Nevertheless, even with these
positive numbers, there is evidence in the Immigration Court and Board
of Immigration Appeals of abuses in the asylum system. The November
2006 of the ABA Journal had an article titled, Asylum Ordeals, by
Margaret Gham Tebo that discusses the arbitrary and capricious decision
making of immigration \judges and the limited protections at the
appellate level (the “Article”). The Article references the appellate
case of Cham v. Attorney General of the United States, 445 F.3d 683 in
which the 3rd U.S. Circuit Court of Appeals stated: “The case now
before us exemplifies the ‘severe wound . . . . . inflicted’ when not a
modicum of courtesy, of respect or of any pretense of the fairness is
extended to a petitioner and the case he so valiantly attempted to
present. Yet once again, under the ‘bullying’ nature of the
immigration judge’s questioning, a petitioner was ground to bits.”
Unfortunately, this was referenced to an asylum relief court proceeding
and the immigration judge hearing the matter. There is concern has not
been limited to this one particular judge. There have been other
circuit courts that have raised these same issues with other
immigration judges. In fact, it has come to a point where an
immigration attorney representing an asylum claimant can determine the
outcome of a case before it is heard based what immigration judge is
assigned to the case. The Article mentions a study by Andrew I.
Schoenholtz, a law professor at Georgetown University Law Center, which
shows that, as mentioned above, the national average of granting asylum
relief by the courts is 38%, but within those averages there is a
discrepancy in the decision making. According the Schoenholtz., some
judges grant 10 of the cases while other grant 80 to 90 % of the
cases. Most fall within 25 to 50% grant rate. According to the
“Clearinghouse Report” (as defined in footnote 1), there was on
immigration judge, who was a former Immigration and Naturalization
Service employee, who denied 96.7% asylum petitions. In contrast,
there was a New York immigration judge who worked for the Legal Aid
Society’s immigration unit who only 9.8% of the cases. With the burden
of proof on the asylum seeker to demonstrate that he satisfied the
requirements to be granted asylum, who most likely does not have any
supporting documentation, this can be a difficult task when facing an
impatient immigration judge. This burden of proof will only become
more difficult with the passage of the REAL ID Act, which requires
asylum applicants to prove that the persecution they have suffered or
will suffer in their home countries is primarily a result of their
“race, religion, nationality, membership in a particular social group
or political opinion.” Prior to this requirement, the applicant only
had to provide that one or more of these characteristics was “a” reason
for their persecution instead of being the central reason for the
persecution. This is a difficult task, especially without any type of
real documentation. It appears it becomes a subjective decision of the
judge.
The other problem is that the immigration judges and the
Board of Immigration Appeals are overburdened. There are about 200
immigration judges nationwide who handle more than 250,000 immigration
cases annually, including 25,000 asylum petitions. In addition, 40,000
cases of the 250,000 are appealed to the BIA. Then 12,000 of those
appealed cases are then appealed to the federal circuit, which
overturns about 40% of the immigration appeals nationwide. The
process of review has been streamlined beginning in 2002, but this
raised concern that the fairness of the process. Some immigration
lawyers argue that the backlog just shifted to the federal courts
because of BIA was merely rubberstamping the immigration court’s
decisions. As part of this reform was reducing the number of members
on the Board of Immigration Appeals from 23 to 11. The American Bar
Association raised concerns about this reform and has recommended to
Congress that immigration judges be required to make findings of fact
and conclusion of law in ruling on petitions and for federal courts to
be allowed to conduct meaningful review of immigration court decisions
involving deportation or removal. Furthermore, the ABA recommended
that the immigration courts no longer be controlled by the executive
branch office.
In the end, an asylum applicants faces many
challenges in being granted asylum in the U.S. and in many cases, such
challenges may be more daunting than the challenges they faced in
getting the United States. In the end, the goal is preventing a person
being returned to a country where he or she would face such
persecution. It would be unfortunate that our asylum system allows
that because of a systems that negative procedural results and based on
subjective decision making.
"I knew his face." "It was like a dream." "I were happy." Emmanuel Comgbaye and his sister Obeyo are telling caseworker Yvonne Togbah how they felt the day the were reunited with their father in Philadelphia after being separated for six years. 
